Wilkes v Johnsen

Case [1999] WASCA 74


WILKES -v- JOHNSEN [1999] WASCA 74



(1999) 21 WAR 269
SUPREME COURT OF WESTERN AUSTRALIACitation No:[1999] WASCA 74
THE FULL COURT (WA)
Case No:SJA:1008/199819 OCTOBER 1998
Coram:KENNEDY J
WHITE J
WHEELER J
23/06/99
39Judgment Part:1 of 1
Result: Conviction for possession of totally protected fish set asideConviction for failing to state to a fisheries officer his name and address upheld
PDF Version
Parties:EDWARD THOMAS WILKES
PETER JAMES JOHNSEN

Catchwords:

Native title
Fishing rights
Extinguishment and regulation
State law restricting persons from carrying on fishing activities
Whether restricted other than in accordance with a licence, permit or other instrument

Legislation:

Native Title Act 1993 (Cth), s 211
Fish Resources Management Act 1994 (WA), s 6, s 7, s 46

Case References:

Attorney General for Quebec v Attorney General for Canada [1921] 1 AC 401
Calder v Attorney General (1973) 34 DLR (3d) 145
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Delgamuukw v British Columbia [1998] 1 CNLR 14
Derschaw & Ors v Sutton (1996) 17 WAR 419
Derschaw v Sutton (1996) 17 WAR 419
Dillon v Davies (1998) 156 ALR 142
Dowling v Bowie (1952) 86 CLR 136
Edwards v O'Connor [1991] 2 NZLR 542
Gerhardy v Brown (1985) 159 CLR 70
Harper v Minister for Sea Fisheries (1989) 168 CLR 314
Henry v Boehm (1973) 128 CLR 482
Kerala v Thomas [1976] 1 SCR 906
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
Mabo (No 1) (1988) 166 CLR 189
Mabo v Queensland (No 2) (1992) 175 CLR 1
Mason v Tritton (1994) 34 NSWLR 572
McGinty v Webb, unreported; SCt of WA; Library No 8606; 27 November 1990
R v Gladstone (1996) 137 DLR (4th) 648
R v Sparrow [1990] 1 SCR 1075
Samuels v Stokes (1973) 130 CLR 490
South West Africa Cases (Second Phase) [1966] ICJR 3
Street v Queensland Bar Association (1989) 168 CLR 461
Walden v Hensler (1987) 163 CLR 561
Walker v State of NSW (1994) 182 CLR 45
Ward v State of Western Australia, (1998) 159 ALR 483 at 508
Western Australia v Commonwealth (1995) 183 CLR 373
Wik Peoples v Queensland (1996) 187 CLR 1

Attorney General for Canada v Attorney General for Ontario [1898] AC 700
Delgamuukw v British Columbia (1993) 104 DLR (4d) 470
Eaton v Yanner, unreported; Crt of Appeal, SCt of Qld; No 10389 of 1996; 27 February 1998
Fejo v Northern Territory (1998) 156 ALR 721
Minister for Primary Industry and Energy v Davey (1993) 119 ALR 108
New South Wales v Commonwealth (Seas and Submerged Lands Act Case) (1975) 135 CLR 337
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513
Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680
Yarmirr v Northern Territory (1998) 156 ALR 370

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WILKES -v- JOHNSEN [1999] WASCA 74 CORAM : KENNEDY J
    WHITE…

Continue reading Wilkes v Johnsen

Sign in free to access the full text

Details
AGLC
Wilkes v Johnsen [1999] WASCA 74
Case
[1999] WASCA 74
Decision Date

CaseChat Overview and Summary

The case of Wilkes v Johnsen involved a dispute regarding native title fishing rights and the applicability of state law that restricted persons from carrying on fishing activities without a licence. The case was heard in the Federal Court of Australia. The plaintiff, Mr Wilkes, argued that his native title rights to fish were extinguished only if the state law regulated his activities in accordance with a licence, permit, or other instrument. The defendant, Ms Johnsen, contended that the state law was a valid regulation of fishing activities.

The central legal issue before the court was whether the state law restricting fishing activities other than in accordance with a licence, permit, or other instrument effectively extinguished the plaintiff's native title fishing rights. The court had to determine if the law was consistent with the native title framework under Australian law. It was also necessary for the court to consider the extent to which state laws could regulate native title rights without extinguishing them.

The court found that the state law did not extinguish the plaintiff's native title fishing rights because it did not regulate his activities in accordance with a licence, permit, or other instrument. The court emphasised that the native title rights were not absolute and could be regulated by the state, provided that the regulation was consistent with the native title framework. The court also held that the plaintiff's conviction for possession of totally protected fish should be set aside, as it was based on an invalid regulation of his native title rights. However, the conviction for failing to state his name and address to a fisheries officer was upheld, as it was not related to the native title rights in question.

Orders

Orders of the court

Conviction for possession of totally protected fish set asideConviction for failing to state to a fisheries officer his name and address upheld

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.